Ancient Law | Page 3

of society, the Law of Persons, and with it the law of civil
rights, is merged in the common subjection to Paternal Power.
Such, putting it in the simplest possible language, is the main argument
of Ancient Law. The exigencies of space and of simplicity compel me
to pass by, to a large extent, most of the other topics with which Maine
deals--the place of custom, code, and fiction in the development of
early law, the affiliation of international Law to the Jus Gentium and
the Law of Nature, the origins of feudalism and of primogeniture, the
early history of delict and crime, and that most remarkable and
profound passage in which Maine shows the heavy debt of the various
sciences to Roman law and the influence which it has exerted on the
vocabulary of political science, the concepts of moral philosophy, and
the doctrines of theology. I must confine myself to two questions: how
far did Maine develop or modify in his subsequent writings the main
thesis of Ancient Law? to what extent has this thesis stood the test of
the criticism and research of others? As regards the first point, it is to
be remembered that Ancient Law is but the first, though doubtless the
most important, of a whole series of works by its author on the subject
of early law. It was followed at intervals by three volumes: Village
Communities in the East and West, Early Institutions, and Early Law
and Custom. In the first of these he dealt with a subject which has
excited an enormous degree of attention and not a little controversy

among English, French, German, and Russian scholars,[2] amounting
as it does to nothing less than an investigation into the origin of private
property in land. The question has been put in various forms: did it
commence with joint (or, as some would put it, less justifiably,
communal or corporate) ownership or with individual ownership, and
again was the village community free or servile? It is now pretty
generally recognised that there was more than one type, though
common cultivation was doubtless a feature of them all, and even in
India there were at least two types, of which the one presenting several,
as opposed to communal, ownership is not the less ancient. But it may
well be that, as Maitland so often pointed out, much of the controversy
has been literally an anachronism; that is to say, that nineteenth-century
men have been asking the Early Ages questions which they could not
answer and reading back into early history distinctions which are
themselves historical products. Ownership is itself a late abstraction
developed out of use. We may say with some certainty that family
"ownership" preceded individual ownership, but in what sense there
was communal ownership by a whole village it is not so easy to say.
Maine was on surer ground when, as in his studies of Irish and Hindu
law, he confined himself to the more immediate circle of the family
group. In his Early Institutions he subjects the Brehon Laws of early
Ireland to a suggestive examination as presenting an example of Celtic
law largely unaffected by Roman influences. He there shows, as he has
shown in Ancient Law, that in early times the only social brotherhood
recognised was that of kinship, and that almost every form of social
organisation, tribe, guild, and religious fraternity, was conceived of
under a similitude of it. Feudalism converted the village community,
based on a real or assumed consanguinity of its members, into the fief
in which the relations of tenant and lord were those of contract, while
those of the unfree tenant rested on status. In his Early Law and
Custom he pursues much the same theme by an examination of Hindu
Law as presenting a peculiarly close implication of early law with
religion. Here he devotes his attention chiefly to Ancestor-worship, a
subject which about this time had engaged the attention, as regards its
Greek and Roman forms, of that brilliant Frenchman, Fustel de
Coulanges, whose monograph La Cité Antique is now a classic. As is

well known, the right of inheriting a dead man's property and the duty
of performing his obsequies are co-relative to this day in Hindu law,
and his investigation of this subject brings Maine back to the subject of
the Patriarchal Power. He points out that both worshipper and the
object of worship were exclusively males, and concludes that it was the
power of the father which generated the practice of worshipping him,
while this practice in turn, by the gradual admission of women to
participate in the ceremonies, gradually acted as a solvent upon the
power itself. The necessity of finding some one to perform these rites,
on failure of direct male heirs, marked the beginning of the